Hamilton and Hutchins)
[Introduced February 20, 2009; referred to the
Committee on the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §48-9-401a, relating
to modification of custodial rights for parent's or guardian's
that have been deployed to the United States Armed Forces;
requiring that any such order is only a temporary order;
allowing the review of the temporary order to take precedence;
shifting the burden of proof to the nondeploying parent or
guardian for a final order; and setting forth definitions.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §48-9-401a, to read as
follows:

§48-9-401a. Modification of deployed parent's or custodian's to the United States Armed Forces; temporary order;
burden of proof; definitions.

(a) Notwithstanding any provision of this code to the
contrary, any court order limiting previously ordered custodial or
visitation rights of a deploying parent or guardian due to the
parent's or guardian's deployment shall specify the deployment as
the basis for the order and shall be entered by the court as a
temporary order. Any such order shall further require the
nondeploying parent or guardian to provide the court with thirty
days advance written notice of any change of address and any change
of telephone number.
The court, on motion of the deploying parent or guardian
returning from deployment seeking to amend or review the custody or
visitation order entered based upon the deployment, shall set a
hearing on the matter that shall take precedence on the court's
docket, and shall be set within thirty days of the filing of the
motion. For purposes of this hearing, the nondeploying parent or
guardian shall bear the burden of showing that reentry of the
custody or visitation order in effect before the deployment is no
longer in the child's best interests.
This section does not otherwise preclude a parent or guardian
from petitioning for a modification of a custody or visitation
order based upon a change in circumstances.
(b) For purposes of this section:
"Deploying parent or guardian" means a parent of a child under
the age of eighteen whose parental rights have not been terminated
by a court of competent jurisdiction or a guardian of a child under
the age of eighteen, who is deployed or who has received written
orders to deploy with the Armed Forces of the United States, namely
the United States Army, Navy, Air Force, Marine Corps, Coast Guard,
National Guard, or any other reserve component thereof.
"Deployment" means compliance with military orders received by
a member of the United States Armed Forces, namely the United
States Army, Navy, Air Force, Marine Corps, Coast Guard, National
Guard, or any other reserve component thereof to report for combat
operations or other active service for which the deploying parent
or guardian is required to report unaccompanied by any family
member.

NOTE: The purpose of this bill is to establish certain
requirements for modification of custodial rights for parent's or
guardian's that have been deployed to the United States Armed
Forces; to require that any such order is only a temporary order;
to allow the review of the temporary order to take precedence; to
shift the burden of proof to the nondeploying parent or guardian
for a final order; and to set forth definitions.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.